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Ram Jewan Misser and ors. Vs. Jagarnath Pershad Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal450
AppellantRam Jewan Misser and ors.
RespondentJagarnath Pershad Singh and ors.
Excerpt:
- .....under the provisions of section 68 of the transfer of property act to obtain payment of certain mortgage money on the ground that the mortgaged property had been wholly destroyed by having been flooded with water. there were two mortgages, one dated magh 1280, and the other sraban 1280. the learned munsif gave a decree in respect of both the mortgages. but the subordinate judge, while upholding the decree in respect of the mortgage of magh, has upset it with regard to the mortgage of sraban.2. the mortgage of magh was unquestionably an usufructuary mortgage. the mortgagee was put into possession and was allowed to take the profits of the property as the interest of the money advanced by him, and the mortgagor was to pay the principal of the money on the full-moon day of any jeyt.....
Judgment:

Trevelyan and Stevens, JJ.

1. In this case we are of opinion that the learned Subordinate Judge has erred in the conclusion at which he has arrived. The suit was brought under the provisions of Section 68 of the Transfer of Property Act to obtain payment of certain mortgage money on the ground that the mortgaged property had been wholly destroyed by having been flooded with water. There were two mortgages, one dated Magh 1280, and the other Sraban 1280. The learned Munsif gave a decree in respect of both the mortgages. But the Subordinate Judge, while upholding the decree in respect of the mortgage of Magh, has upset it with regard to the mortgage of Sraban.

2. The mortgage of Magh was unquestionably an usufructuary mortgage. The mortgagee was put into possession and was allowed to take the profits of the property as the interest of the money advanced by him, and the mortgagor was to pay the principal of the money on the full-moon day of any Jeyt succeeding the date of the mortgage. The second mortgage is, as we read it, clearly nothing more than a further charge of a further sum of money on exactly the same conditions as the first mortgage. It is very short, and has been translated both by the appellants' and the respondents' advisers, and there seems to be no real distinction between the two translations. Taking the translation put in by the respondents it reads in these terms: Whereas I borrowed in cash Company's rupees 99---15 annas current coin from Madho Misser and Ram Jewan Misser, of mouzah Adrakpore, pergunnah aforesaid, I shall pay the interset thereon at the rate of one rupee per cent. I have borrowed the money along with the registered deed' (that is the deed of Magh) 'in which the field of my share is 3 1/2 bighas, and I mortgage this field for this money. I shall first pay this amount together with interest, and after that the money covered by the registered mortgage bond. Therefore I execute this document so that it may be of use when required.' The document proceeds to this effect: 'I have executed this document as apart of the said mortgage bond;' and in the third place we find this document incorporates the second loan with the first. Meghborn Singh, who is one of the mortgagors, when signing his name says: 'I execute this bond for 100 rupees payable along with the mortgage bond.' There could be nothing clearer to show that it was intended to add this money to the amount of the previous mortgage and to place it on the same conditions. It follows, therefore, we think that the plaintiff is equally entitled to sue for the money upon this mortgage as upon the other.

3. It has been argued that the claim in respect of this money is barred by limitation, and it is said that as the right to sue upon this mortgage was barred before the inundation, the right to sue under Section 68 of the Transfer of Property Act is also barred.

4. In the first place it is exceedingly doubtful, to say the least of it, whether there was any right at all to sue for the money. But assuming that there was such a right, it does not by any means follow that the plaintiff is not entitled to have substituted for the security the money which takes the place of the security. It is admitted that the plaintiff is entitled to remain in possession of the property until the mortgage moneys have been repaid. Therefore in the event happening which is provided for in Section 68 of tin Transfer of Property Act, it is clear that the plaintiff is entitled to have the money substituted for the property.

5. In the result, we think that the decision of the Subordinate Judge must be set aside, and that of the Munsif restored with costs in this and the Lower Appellate Court. As far as the cross objections are concerned there is nothing in them, and they must be disallowed.


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